Forced Marriage and the Exoticization of Gendered Harms in United States Asylum Law

While claims of forced marriage or pressure to marry represent only a tiny portion of refugee claims overall, they provide an illuminating sliver reflecting the major recurring themes in gender and sexuality claims from recent decades. Refusal to marry is a flashpoint for expressing non-conformity with expected gender roles for heterosexual women, lesbians and gay men. This paper presents results from our study of 168 refugee decisions from Australia, Canada, the United Kingdom and the United States where part of the claim for refugee protection concerned actual or threatened forced marriage. In the present discussion, we highlight our findings from the cases from the United States while detailed findings regarding the broader international data set are published elsewhere. We find that the United States is far behind Australia, Canada and the United Kingdom in terms of analyzing gender-related persecution. In addition to not finding a single case with a straightforward holding that forced marriage in and of itself could constitute persecution, we also did not find any engagement with international human rights standards. Of the few cases that were successful on a substantive basis, we found that the underlying facts reflect an extreme exoticization of the women involved

From Functional Family to Spinster Sisters: Australia\u27s Distinctive Path to Relationship Recognition

This Essay reflects on the approaches that Australia, and to a lesser extent New Zealand, have taken to relationship recognition, focusing in particular on the ways in which they have differed profoundly from what has happened in the United States. Specifically, the relationship recognition debate in Australia through the 1990s was characterized by the absence of any real interest in marriage and instead focused on developing more functional and adaptive models of relationship recognition, primarily through presumption-based models (for example, the ascription of relationship status). In this discussion we start, by way of background, with an explanation of the development of widespread legal recognition of heterosexual non-marital cohabiting relationships (“de facto relationships”) in Australia. We then briefly outline the first same-sex relationship law reforms in Australia in 1999 in the state of New South Wales before touching on areas of similarity and difference in other Australian states and territories. We then critically analyze this history, highlighting the features that are distinctive to Australia, such as the emphasis on presumptive recognition, the move to recognize non-couple relationships, and, until recently, the lack of focus on marriage. Since 2004, marriage has come to be an increasingly popular equality goal in Australia and we consider possible reasons for this. We also examine the ways in which the open-ended “interdependency” relationship model, originally promoted by progressive functional family advocates has, arguably, been co-opted and subverted by conservatives. We conclude with some reflections on how these very different approaches might be explained

Reproductive Outsiders

This body of work examines law’s response to non-genetic families. I have always centred the experience of family formation and family life such that I have traversed and linked distinct legal sites and doctrines, examining access to family formation avenues, models for legal recognition of families once formed and, latterly, legal responses to information sharing and broader kinship practices among genetically related individuals in childhood and later life. In doing so I have made a major contribution to a body of scholarship centring ‘lived lives’ in the exploration of family, relationship and reproduction law at its broadest, incorporating comparative analysis across closely related jurisdictions, attention to and integration of sociological data, and a focus on responsive practical reform outcomes. As an important part of my focus upon lived lives I have brought a continual awareness of gender to the unpacking of ‘gay and lesbian’ equality claims and reform movements to analyse the differential position of women and men in relation to parenting and paid labour, and latterly to build a framework of analysis that bridges heterosexual/same-sex family formation issues (papers 1, 2, 3) to examine links and resonances across ‘reproductive outsiders’ or non-genetic family forms (papers 3, 4). The sweep and reach of this approach makes an original contribution by stepping out of doctrinal and jurisdictional silos to examine the impact of law upon, and the unmet legal needs of, non-genetic families through the life cycle. Throughout these works I have contributed to analysis and debate about the role of ‘the eternal biological family’ in law, specifically engaging in the inter-relation of developing social notions of genetic essentialism, father’s rights and recognition of non-genetic family forms, in legal regimes governing family relationships. I have been one of the leading thinkers in the area of ‘functional family’ developing a clear articulation of how these ideas, drawn from psychology and sociology were mapped across into legal regimes recognising informal relationships (paper 1), examining the limitations of ‘functionality’ when in conflict with genetic parenthood (paper 2) and going on to build a framework for understandings of legal parenthood in non-genetic families as involving a dynamic interaction of intentionality and functionality (paper 2 and 3). In my work on ART and surrogacy I have built upon a body of feminist work on relational theory, agency and resonant choice. I have applied this approach to argue for the centring of an understanding of the interests and needs of parties in ART as part of a web of relationships rather than as isolated and oppositional rights (papers 6, 7, 8). In particular I have made original contributions to understandings of the human embryo in law not as an entity worthy of recognition in its own right, but as an object of unique value to the woman who created it, including on occasion as an imagined relation (paper 6); in directing attention to lateral rather than simply linear genetic links in ART law and policy (paper 6, 7, 8); in looking at how the views of parents shape and interact with those of offspring in seeking information on genetic relatives (paper 8) and in understandings of the significance of the numbers of potential genetic relatives (paper 7). In this area I have made important contributions to unpacking policy rationales and examining the largely ignored evidence base concerning family numbers and identity disclosure regimes (papers 7, 8) and concerning the experiences of surrogates in the development of laws governing surrogacy parentage and payment (papers 4, 5). I have argued for a nuanced and attentive notion of relatedness in law, incorporating the diverse and changeable understandings of the significance of genetic links (traversing a wide range of meanings from information source to family member) that individuals in non-genetic families formed through ART have expressed (papers 4, 5, 6,7, 8). Taken together, this is a body of feminist socio-legal work on the regulation of family relationships, assisted reproduction, genetics, kinship in law. Through this work I have made an original contribution to both scholarly thinking and legislative and policy frameworks responding to the needs of non-genetic family forms

Introduction: Gender in Refugee Law: From the Margins to the Centre

Questions of gender have strongly influenced the development of international refugee law over the last few decades. This volume assesses the progress towards appropriate recognition of gender-related persecution in refugee law. It documents the advances made following intense advocacy around the world in the 1990s, and evaluates the extent to which gender has been successfully integrated into refugee law. Evaluating the research and advocacy agendas for gender in refugee law ten years beyond the 2002 UNHCR Gender Guidelines, the book investigates the current status of gender in refugee law. It examines gender-related persecution claims of both women and men, including those based on sexual orientation and gender identity, and explores how the development of an anti-refugee agenda in many Western states exponentially increases vulnerability for refugees making gendered claims. The volume includes contributions from scholars and members of the advocacy community that allow the book to examine conceptual and doctrinal themes arising at the intersection of gender and refugee law, and specific case studies across major Western refugee-receiving nations

Acusações de Bruxaria Como Perseguição Baseada no Gênero no Direito dos Refugiados

A violência relacionada à bruxaria (VRB), particularmente direcionada a mulheres e crianças, tem se tornado uma fonte de crescente preocupação para organizações de direitos humanos neste século. Contudo, para aqueles que fogem de VRB, tal preocupação não tem se refletido no reconhecimento da condição de refugiado. Esta pesquisa examina como alegações de VRB foram abordadas em todas as decisões de refúgio disponíveis em inglês, oriundas de cinco jurisdições. Argumentamos que VRB é uma manifestação de violência relacionada ao gênero, que expõe graves falhas na aplicação da jurisprudência sobre refúgio. A desatenção aos elementos religiosos e organizacionais de práticas de bruxaria, combinada com uma análise insensível ao gênero, demonstra que as solicitações foram frequentemente reconfiguradas por decisores como rancores pessoais ou disputas familiares ou comunitárias, de forma que elas não foram consideradas ofensas reconhecidas pela Convenção de 1951, ou foram simplesmente desmerecidas e tidas como inverossímeis. A taxa de sucesso das solicitações foi baixa, comparada às médias disponíveis, e, quando bem-sucedidas, as solicitações foram universalmente aceitas sob algum outro fundamento que não fosse o elemento de bruxaria do caso. Este artigo foca particularmente nos casos em que a/o solicitante temia perseguição por ser acusada/o de ser bruxa/o, enquanto um segundo artigo relacionado a este aborda as pessoas temendo perseguição por bruxas/os ou pelo meio de bruxaria

Evaluating a Change to Seminar-Style Teaching

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